Since evidence of the NSA’s widespread spying programs first surfaced in June, the prevailing line from Washington has been that any intelligence collected on US citizens is an unintended consequence of hunting for terrorist threats, and that the agency’s operations are strictly overseen by the Foreign Intelligence Surveillance Court. But according to two new articles from the Washington Post, not only has the agency violated the rules thousands of times in 2011 and 2012, the FISC says it’s forced to rely on the veracity of government reports for enforcement, severely limiting its ability to provide meaningful oversight to the programs.
According to a leaked top-secret audit prepared for NSA officials, the agency racked up 2,776 policy violations related to the collection and handling of legally protected communications in the 12 months before May 2012. The audit states that nearly all of the incidents were the result of errors committed either by the operator or the software, for example, failing to sufficiently narrow a search with appropriate delimiters, or the inability to get real-time information about a target's whereabouts. One such error led to the interception of a "large number" of phone calls originating in Washington when the area code 202 was mistaken for 20, the international dialing code for Egypt.
Numbers would be significantly higher if they included other NSA units
The report shows a sharp increase in the number of incidents between April 2011 and May 2012 related to Executive Order 12333, which lays out the roles and responsibilities of the various US intelligence agencies. An unnamed NSA official insisted that the total number of incidents was small when considered in context, saying "you look at a number in absolute terms that looks big, and when you look at it in relative terms, it looks a little different." The Post points out that the numbers revealed in the audit are only for the NSA’s Fort Meade headquarters, and would be significantly higher if they included other NSA units and collection centers.
The report lends credence to the idea that individual NSA analysts have significant latitude in their ability to query intelligence databases. At the same time, the audit's top secret classification underscores the gulf between the intelligence community’s public proclamations of rigor and restraint and what it acknowledges internally.
"The FISC is forced to rely upon the accuracy of information that is provided to the court."
To top things off, the secret court charged with overseeing the NSA’s intelligence gathering says that it has to take the government at its word when it says that these violations are genuine mistakes. US District Judge Reggie Walton tells the Post that "the FISC is forced to rely upon the accuracy of information that is provided to the court… The FISC does not have the capacity to investigate issues of noncompliance." The response stands in stark contrast to the administration's insistence that the NSA's programs are strictly supervised by the FISC. "They’ve got lifetime tenure as federal judges, and they’re empowered to look over our shoulder at the executive branch to make sure that these programs aren’t being abused," said the president at a June press conference.